STATE RESPONSIBILITY PART 2
When can a state invoke self-defense? During armed
0-21
A: Ugm the commentary provides that circumstances
precluding wrongfulness operates as a shield rather than a
sword. What do you mean by that?
A: What are circumstances precluding wrongfulness?
S: these are justifying circumstances wherein the wrongful
acts are deemed justified.
A: So in effect, when a state invokes circumstances
precluding wrongfulness, the state acknowledges or admits
that it has breached an international obligation but the breach
is justified under the circumstances. So lets go back to CPWs
operating as a shield rather than a sword. What are the
effects if the state invokes circumstances precluding wrongful
acts? What is the legal consequence of a CPW? Does CPW
terminate the obligation?
Its not a sword because it does not result to the demise of the
obligation. It does not terminate the obligation. It only
operates as a shield. Meaning, a party that successfully
invokes CPW can validly suspend the performance of any of
its obligation. And there are several circumstances precluding
wrongfulness. Consent is one right? What do you understand
of consent as a CPW? When is consent a CPW? All forms of
consent? What are the two elements for consent to be a
circumstance?
1. Consent must first be valid
2. Circumscribed to the extent of the consent given
So even a state consents to the doing of a particular act, if
another state does an act that is not within the consent given
then there is no circumstance precluding wrongfulness. Again
consent must be valid and must be confined to the extent of
the consent given. So the only issue with consent guys is the
validity of the consent. SO how do we measure if the consent
given is valid?
1. The person making it is authorized… wag gi tiwas
Can you give an example within which a state has given its
consent and without its consent the other state would have
violated an obligation under international law
1. Performing military services with the consent of the
receiving state is a CPW. Why? Without the
consent, the military activity would have been a
violation of the sovereignty of one state.
2. Visiting forces, humanitarian rescue operations,
conduct of inquiry and investigation and even the
detention of foreign nationals. Remember the
IWAN? Case?? Argentina did not consent to the
abduction if IWAN in its territory. Correct? That
would have been an internationally wrongful act
pero wala naman gi pursue ni argentina, gi wave
naman niya ang violation.
SELF-DEFENSE
A: So why is it a circumstance precluding wrongfulness?
There are limitations to self-defense.
conflict?
Article 21
Article 21 Self-defence
The wrongfulness of an act of a State is precluded if the act
constitutes a lawful measure of self defence taken in
conformity with the Charter of the United Nations.
The important phrase in Article 21 which you have to
underline is TAKEN IN CONFORMITY WITH THE CHARTER
OF THE UNITED NATIONS. She is correct that self-defense
is applied in armed conflict.
Article 2 paragraph 4 of the UN Charter is a jus cogens norm.
it is the prohibition on the use of force.
“All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
Meaning states should not use or threat another state to the
use of force. A very important exception to this is article 51 of
the UN Charter
“Article 51 Nothing in the present Charter shall impair the
inherent right of individual or collective selfdefense if an
armed attack occurs against a Member of the United Nations,
until the Security Council has taken the measures necessary
to maintain international peace and security. Measures taken
by Members in the exercise of this right of selfdefense shall
be immediately reported to the Security Council and shall not
in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain
or restore international peace and security.”
This is the inherent right of a state to defend itself. So before
you can exercise self-defense, there must be an armed
attack. What is an armed attack? Kinahanglan ba nga gi
bombahan ka? And an armed attack from whom? Article 51
does not mention who is responsible for the armed attack. In
fact this is the interpretation used by the US and all other
countries nga nay war against non-state entities. AL Qaeda,
ISIS, etc. The prevailing interpretation is that an armed attack
must constitute actual use of force but that interpretation is
being questioned.
For example, gi point na ni North Korea ang ilahang missiles
to the direction of the US, should the US still wait for an
actual armed attack? Or can the US act on self-defense
already? Under the circumstances, considering the weapon
involved, the US can actually exercise self-defense because
the weapon involved is nuclear weapon. You don’t wait for a
weapon to explode because if nabombahan nakag nuclear
weapons, wala na guro kay opportunity to defend yourself.
Therefore self-defense will be rendered nugatory. You can
therefore invoke self-defense if there is an armed attack.
1. Di madungog of total restraint
2. Proportionality
3. Military necessity
Actually guys kanang military necessity and proportionality
mao na ang obligations of total restraint, Meaning nag gira
naman jud mo no, ganahan naman jud mo ug pinatyanay,
dapat even of there is self-defense or exercise of self-
defense, the state must observe total restraint.
What do you mean by military necessity? In war, you are
suppose to win diba? You are suppose to kil, you are
suppose to bomb and etc. but that authority during war is not
unbridled. The level of weapons that you would use must be
necessary to the military advantage that you want to achieve.
Excessive use of force that is not required ny the military
advantage is not allowed.
Proportionality
This tells you that your self-defense must be proportionate to
the wrongful act done. Actually guys questionable ang pag
place sa self-defense sa ARSIWA because this is a better
regime of law in use in bellum. Use ad bellum v use in
bellum. Mag gubat pa-ad bellum nag gubat na-in bellum.
Therefore self-defense in ARSIWA must comply with the
UNcharter, there has to be an armed attack, there must be
compliance with obligation under total retraint.
COUNTER MEASURES
What are the requirements for the counter-measure to be
lawful? How was this perceived in Gabcikovo?
1. There has to be a previous wrongful act by another
state
2. The counter measure must be directed against the
state who made the previous misconduct
21 – 42
A: You’re missing one very important requisite – that the
counter measure must be directed against the state
responsible for the previous misconduct. Lain sad no if gi
sumbag ka ni person A but imo gisumbag si person b. and
that happened in international law before. The state
responsible for the wrongful act is state a but the
countermeasure was directed against state b. why? Ally sila
and mas duol. That must be invalid. Because the
countermeasure must be directed against the state
responsible for the previous misconduct.
Was there a lawful countermeasure in the Gabcikovo case?
S: There was none, because what hungary did was they
ceased their obligations of the GN project while
Czechoslovakia did variant C upon the cessation of Hungary.
Variant C was not within the cardinal objective of the GN
project. Because what was intended was a joint venture, joint
obligation. It was for a joint purpose. But what happened was
that the variant c was only for the benefit czechslovakia.
Therefore, it was not a lawful countermeasure.
A: you said one of the requirements of lawful countermeasure
was is that it must be proportionate. Why?
S: because it must be a lawful countermeasure
A: it must be proportionate to be lawful. You said also that the
effects must be irreversible? (or reversible huhu idk) why?
S: because when they do the variant c it will not
A: ya, why is it? why is that a requirement – that it must be
proportionate and it must be reversible?
S: because if the acts of the breaching state may also stop
then the lawful measure should be reverted
A: why? There must be reason why there are requirements of
proportionality and temporary nature of the effects
S: because the lawful counter measure should be temporary
because theyre only asking it to cease its breaching of the
obligation. Once it stops, then they’ll get their goal. So once
they stop the breach then..
A: So the reason for counter measures is really to
encourage/ask the other state to comply with their obligations
which is why it must be proportionate. Ngano man? Its not
intended to be a punitive measure. It’s not a punishment.
You’re only asking the other state to perform its side of the
obligation. So if ang gravity sa violation is inana ka dako then
the countermeasure should also be like this because it’s not
intended to be a punishment. That’s the same reason why it
has to be temporary. Ngano man? If the coutner measure is
permanent, that in itself constitutes another breach of an
obligation right? It must be temporary because pagmo
perform na ang other state sa ila obligation, pwede nimo
ireverse, ibalik sa status quo. But if the effect is permanent,
even if buhaton sa other state ang iyang obligations, wala na
siyay silbi because the damage has been done and the
damage is irreversible.
So for you to understand the law better, you ask “why are the
requirements framed this way?” find the reason of the law.
which is really to … what’s the reason for counter measures?
To procure cessation (stop the lawful conduct), reparation, or
compliance with an obligation. You can say specific
performance in oblicon. But don’t use that for PIL. Use
cessation or performance of an obligation or reparation.
Ngano wala siya ka achieve nga countermeasure sa
Gabcikovo? Unsa man ang elements nga kuwang? The
proportionality as well as the temporariness.
Most of the time, countermeasures must be non-forcible.
Meaning it must not amount to an actual use of force. Dapat
strategic ka sa countermeasure. It must be to an extent and
gravity that will allow the other state to bow down and cease
from its wrongful conduct. If the countermeasure in itself is
provocative already, then maybe it will not serve its purpose.
Force Majuere
S: a force majeure is where a state claims that circumstances
were unforeseeable and could not be prevented so they have
a breach of obligation.
A: there are exceptions to the applicability to the force
majeure rule. What are the two? It’s in the codal provision.
S: ARTICLE 23: (a) the situation of force majeure is due,
either alone or in combination with other factors, to the
conduct of the State invoking it; or (b) the State has
assumed the risk of that situation occurring. (2002 ILC
Articles)
A: what do you call #2 in (I cant hear)
S: Assumption of risk
A: assumption of risk! The first exception is the principle of
merisi. The second principle is assumption of risk. You
cannot benefit from your wrongful act, right? So those are the
exceptions. What are the elements for force majeure to
apply?
S: it must be unforeseeable. Beyond control. Makes it
impossibility of performance of the state
A: so the elements are: (1) either the state faces an
irresistible force OR an unforeseen event (these are
independent requirements: meaning either irresistible force
siya OR unforeseen), (2) beyond control. (3) impossibility.
And obviously, france failed in its attempt to argue on force
majeure in the Rainbow Warrior case. Do you agree with
me?
S: yes atty.
A: absolutely?
S: yes
A: how many people -
S: two!
A: - ang gi rescue? Ay illegal abduct? What happened in this
case?
S: rainbow warrior is a ship
A: By??? Which environmental activist do you know of? You
don’t know an environment activist group?!
S: I know Gretchen Thunberg
A: GROUP? You don’t know greenpeace? Anyway what
happened in the rainbow warrior?
S: the team of kjdhfalsdf sabotaged and sank the rainbow
warrior
A: sabotage is such a friendly term. They wanted it to explode
S: it belonged to the greenpeace international
A: why did they want that?
S: they don’t want them to meddle with their environmental
affairs
A: this is related to your Loogertest case? (I AM SO SORRY
IDK HAHAHAHA) where France conducted atmospheric tests
in the pacific ocean (ok guys it’s Nuclear Test Case lol sorry
im too tired to go back and change that basta NUCLEAR
TEST CASE DAW RELATED ANI NGA CASE). Right?
Because the tests creates environmental hazards, ni sail ang
dayon ang greenpeace and the name of their ship is Rainbow
Warrior to protest. What france did was to send its own
agents and syempre, unsa ila buhaton? They want
greenpeace to shut up. They shot people down by bombing
them. Right? So na explode ang rainbow warrior. gi tapok sa
New Zealand. Ngano New Zealand man? Because of
terriotirality principle. The incident happened to be within the
territorial waters of New Zealand. Gi dakop si kinsa?
S: Captain reyor????
A: who else?
S: major mafard? LOL
A: Duha ra?
S: yes.
A: ok so what happened?
S: NZ had an agreement with france wherein the two persons
would be sent to an island
A: whats the name of the island? JAO. J-A-O
S: And they were not allowed to leave the island without the
consent of france but NZ claimed that because of health
concerns of Major Mafard. She was transfgerred outside the
island. But france said they should be given the opportunity to
examine the health of Major Maffard first.
A: Examine where?
S: in Jao Island. But NZ did not allow them to do that. They
transferred Major Maffard to outside the island
A: R U SURE ABOUT THIS **CALLS ANOTHER
STUDENT** she was correct in saying that there was an
agreement between NZ and France regarding the custody
over these persons. But france obviously breached that
agreement by??
S: because france did not ask consent of NZ in sending
Maffard back to france –
A: it was surreptitious. Grabe ka mean ang France. It was
able to steal its own citizens within the airspace and waters
and land of NZ without NZ knowing about it. and Jao is
supposed to be an isolated island. Ok and then?
S: NZ said that they’d send their own team?? however france
did not keep this but rather sent Maffard back to france.
A: for?
S: for his medical treatment
A: FOR SPECIAL CARE
S: FOR SPECIAL CARE.
A: AND?
S: so the next person was Captain Cheer? (idk hahaha) who
was gonna have a child already and they asked for the
consent. For which NZ said ok we’re gonna send our medical
team again. And france accepted such proposal. However
the day before they were gonna send the medical team,
Captain Cheer(???) that her father died so she had to be sent
back to france. With regards to the death of the father, france
did not ask for the consent. But sent her back to france. After
the
A: Ang gibuhat ni France kay nag away(?) jud sila ug
circumstances precluding wrongfulness. Dagahn sila gi
invoke. Among other necessity ba? And force majeure? Why
did france fail at the force majeure argument?
S: because the medical treatment that was to be given in Jao
was not sufficient however the medical treatment was not that
important?
A: was not that important?
S: not that urgent!
A: the court said it’s not that urgent? Where did france fail? In
proving that – what are the elements again of force majeure?
S: (1) either the state faces an irresistible force OR an
unforeseen event (2) beyond control. (3) impossibility.
A: so where did france fail? They failed in material
impossibility. Because according to the tribunal in this case,
the test of applicability of force majeure is of absolute and
material impossibility. Meaning: if there are other ways under
which pwede diay nimo ma respond ang urgent need then
you can resort to those other needs.
Let’s clarify this case.
Duha man ang persons involved. The Tribunal (not ICJ).
Before anything else: Rainbow warriror is your landmark case
in saying that the source of obligation that may be breached
could be a bilateral treaty between the two parties.
Remember IWA? There must be a breach and attributable.
The question is what obligations should be breached?
Rainbow Warrior says that we are not concerned with the
source. So long as it’s between two state parties then will be
sufficient for the first element. What was the source of
obligation in this case? The agreement between NZ and
France. Is it a multilateral convention? No. is it CIL? No.
general principle of law? no. it’s simply an agreement
between two state parties and that is enough. Nagka sinabot
NZ
The tribunal is saying nga ma dawat namo. But there is a
certain degree of urgency naipadala si Maffard sa france for
medical attention. The tribunal is willing to accept that. Ang
dili ma dawat sa tribunal is death(???) and pregnancy. Ingon
si tribunal nga I think New Zealand Hospitals and medical
facilities will be able to respond. So walay urgency or
irresistible force. It’s not beyond the control because ni offer
man si NZ in good faith to bring him to capital city for medical
attention.
P: the tribunal is saying na nadawat nila na there is a certain
degree of urgency na ipadala si *someone* sa France for
medical attention(?). The tribunal is willing to accept that. Ang
dili madawat sa tribunal is that of death and pregnancy. Ingon
si tribunal, I think that New Zealand also has medical facilities
that will be able to respond. Right? So wala gyuy problema
ang letter (b) because walay urgency, walay irresistible force.
So it’s not beyond the control because ni-offer man, in good
faith, to bring her to the capital city for medical attention. So
while the tribunal agreed that there may be a ground for
*someone* to go to France – unsay sala ni France ani? –
wala gi *students mumble with atty.* Circumstances that
impute(?) wrongfulness are intended to be temporary, diba?
When the reason for the circumstance ceases to exist, we go
back to the status quo. Meaning, you go back, which France
did not do. Because kahibaw naman jud ka unsay major
reason. Nagkasinabot ta? Remember, the circumstances
precluding the wrongful act will not terminate the treaty, will
not allow a state to continuously refuse to perform its
obligations under the treaty. And that’s exactly what france
did. Just because naay force majeure, does not mean na na-
terminate na imong obligations. When the force majeure
ceases, you go back to status quo. Nagkasinabot ta?
Besides, ingon si tribunal, wala may absolute impossibility for
how *someone* to actually have medical relief. In fact, ga-
provide man ang New Zealand. I mean seriously, you’ll travel
halfway across the world just to seek medical attention? It’s
not like New Zealand cannot offer one! Naa gani silay, you
know, traditional medicines, diba? And New Zealand is
actually willing to provide one.
*calls student* Distress.
S:*naka-answer ra siya…I think*
P: So distress is really about saving human life. It could be
the life of the author or the agent of the state or it could be
the life of anyone. Right? Therefore, distress is present is
what circumstances?
S: Uhmm in armed conflict…
P: REALLY??? ARE YOU SURE?!
S: Uhhh…
P: When is there distress? Have you heard of “a ship in
distress”? (students: yes. *char*) A ship in distress is a ship
that is refueling, that needs repairs. So for example, the
original destination of the ship is from A to B. Okay? In the
middle, nahutdan siyag gasolina! So niagi siyag C kay mas
duol. This ship is not authorized to dock on the ports of C
because walay consent. But since wala siyay laing choice
because naguba na ang iyang haul, mangamatay na silang
tanan, ni-dock siya sa state C. Actually naay violation of the
territorial waters of state C, right? But that’s a circumstance
precluding wrongfulness kay if wala siya ni-dock,
mangamatay silang tanan. Right? So it’s really about saving
lives. The original route may be continued anytime. You
cannot invoke distress under 2 circumstances: first?
S: *answers*
P: so same ang first exception no? The principle of “merisi!”
(lol) Second exception is that you cannot invoke distress if
your action would create more problem. In our example, ni-
dock sa state C and you are precluded from international
obligation because you’re saving lives pero at the end of the
day mas daghan diay ang namatay because of your act.
Okay? Again, the primordial consideration of distress as a
circumstance precluding wrongful act is reasonable way of
saving human life. Therefore, this applies in airspace –
airplanes bitaw – diba? So an airplane in distress, may make
an emergency landing in a state without its consent, but with
the intention of saving lives. This happened before. The US
was forced to cross the airspace of Yugoslavia because
kinahanglan niya og gasoline. Alright. So what’s the
difference between distress and force majeure?
S: In distress, the urgency is for the greater good, while in
state of necessity -
P: No! force majeure sa. What’s the difference?
S: In distress atty, the circumstance is foreseeable –
P: Mmm-hmmm. Example, mahutdan kag gasoline –
S: Yes, atty. While in force majeure, the circumstance was
unforeseeable.
P: Okay. What else? Do you see what she’s doing? She’s
attacking the elements. Okay. What else?
S: and also in force majeure, there is an element of
uncontrollability. *chika na kaayo ang tag-iya sa phone
soooo…*
P: The difference really lang is whether the state is acting
involuntarily. In force majeure, the state is acting involuntarily.
Meaning, the state has no reason at all – remember that one
of the elements is that it is beyond the control of the state?
Therefore the state had no choice but to act in that manner.
That’s not true for distress. For distress, the state is acting
voluntarily. In fact, the state voluntarily chose to come here,
and not there. Right? Meaning, the act is voluntary in
distress. Next *class another student* What is necessity?
S: … there are circumstances when that is the only thing that
could be done *chika chika*
P: Under what circumstances where necessity may not be
invoked?
S: If the state has contributed to the state of necessity. And if
the international obligation in question closes the possibility of
invoking state of necessity.
P: How do you understand this? “the international obligation
in question closes the possibility of invoking state necessity”
S: *mumbles something*
P: Mmm-hmm. So what’s the difference between necessity
and consent, self-defense, countermeasure…
Countermeasure lang sa.
S: State necessity is precluded by an essential state interest.
While in countermeasure, the purpose of the same is just to
force the other party to comply with its obligation.
P: What else?
S: In necessity, there must be a threat to the essential state
interest, while in countermeasure there is a violation of an
international obligation.
P: Okay. So how was necessity discussed in the Gabcikovo
case?
S: *something about the facts of the case then mentions that
there were elements*
P: Okay so what are the elements of the state of necessity?
S: first, there must be an essential state interest.
P: what is an essential state interest?
S: Uhmm…
P: Actually, we are not to judge what are essential state
interests. As part of its sovereignty, it is according to the
state’s discretion on what to consider as essential state
interest. Second element.
S: There is a grave and imminent threat to the essential state
interest. In this case it was found that there was no grave
threat.
P: The court is not really amenable with the idea that in the
future, there might be hazardous consequences to the
environment. Actually, ni-acknowledge man ni court and it
said na in 1989, wala naka-provide og enough evidence si
Hungary as to the imminence of a peril. It’s not that dili poydi
ang future peril. Ingon si court na it would be unreasonable
for a state to wait for the peril to actually occur, but provide
enough evidence of the imminence or the happening of that
peril. And in that respect, Hungary failed. Okay? What’s the
third element?
S: The act must be the only way to prevent the peril.
P: Hungary also failed in this. Why?
S: the court said that there were other ways …
P: and also there was already an ongoing negotiation
between Hungary and Slovakia, which could have resulted to
cooperation with respect to concerns. Next element?
S: *wala na ko kasabot*
P: So, a state cannot invoke state of necessity to protect
one’s essential state interest if doing so would violate another
party’s state interest. What’s the last requirement?
S: the last requirement is that the state should not contribute
to the occurrence of the state of necessity.
P: What kind of contribution are we looking at na we can say
“hala, ni-contribute siya to the state of necessity so dili siya
maka-invoke sa state of necessity as precluding obligation!”
S: *kroo kroo* *defeaning silence*
P: the contribution must be substantial. Okay? It must be
substantial! Because if the contribution is merely minimal,
then dili ka makaingon na the state contributed to the state of
necessity. Are we clear on this? Do not forget the elements
ha! Gi-isa-isa baya jud nato ni para maremember gyud ninyo.
Also remember the exceptions, na ang first exception is the
principle of merisi, pero the second exceptions are different.
They may come out sa mcq, diba? State of necessity is really
exceptional because it is the circumstance very prone to
abuse. So it really has very stringent requirements because
states can easily do away with this. Ngano man? State of
necessity does not require a prior conduct by another state.
Countermeasure requires prior violation of an obligation of
another state. Consent – there must be, of course, consent
by another state. Self-defense, there must be an attack by
another state. Necessity does not need any prior conduct.
Meaning, it’s totally dependent upon the state invoking
necessity. The second reason why it is exceptional is that
necessity does not result to a coerced decision of a state,
diba? By invoking state necessity, the state is not acting
involuntarily. But why is state of necessity invoked most of
the time? Because it really goes to the heart of an essential
state interest. So just remember all the requisites mentioned
by *miss someone* for you to invoke state of necessity. All
conditions must be satisfied. Alright? The state has the
prerogative or discretion on what options to take or what
essential interest to protect.
7.3.6 Necessity
RVP: So again, the state has the prerogative, the discretion
to consider what options to take or what essential interests to
protect. But according to your ICJ in Gabcikovo, the state is
not the sole judge of that determination. It has to be
objectively analyzed. (PAUSE) The contribution must be
substantial; it must not be merely incidental or peripheral.
Baguio, do you remember state of necessity being invoked in
the Advisory Opinion Case?
Baguio: Yes Atty. According to the ICJ, state of necessity was
not upheld because there were other means to protect the
(inaudible)…
RVP: In fact, the ICJ did not offer other means because the
ICJ thought it was very obvious there are other means short
of building the wall that could address any security interest
Israel might have in mind. Therefore, the state of necessity
argument was not accepted. Why did Israel even argue along
those lines? It is to make the construction of the wall not
illegal. Bear in mind that circumstances precluding
wrongfulness must be temporary. The construction of the wall
must be temporary to address whatever concerns Israel had
in mind. Until now, the wall still stands very strong. In fact, it
is still expanding.
Legality of use of Force Case
Baguio: This pertains to the attacks made by Belgium
to another countries in Serbia. There were attacks because
Serbia would not sign a treaty, allowing protection for the
Kosovo people.
RVP: So this is related to your Kosovo Advisory Opinion.
Remember when we said that the NATO (North Atlantic
Treaty Organization) launched aerial attacks against the
former Yugoslavia (now Serbia). Why? To further their right to
self-determination of the Kosovar-Albanians. The use of force
would have been illegal, right? And we’ve learned that you
cannot create a state through illegal acts. But Bangladesh
tells you it is okay to use force in the furtherance of the right
to self-determination. So, why is this assigned under
necessity?
Baguio: Because this was asserted that Belgium… because
the… would endanger the right of the Kosovo people, but the
ICJ said that…
RVP: Okay. So have you read the Consequences of
Wrongful Conduct? No? Let’s discuss nalang Legality of
Use of Force. This is a verbatim record, the transcript of
records of the case because it is still pending.
Serbia wants to have its revenge, because Serbia does not
want Kosovo to be independent. However, eventually, the
Kosovar-Albanians were able to declare themselves as a
state. Serbia got bitter because it lost territory, resources, and
people. Thus, it filed a case before ICJ because of Belgium’s
use of force. Why did it sue Belgium? It’s just because
Belgium is the Headquarters of the NATO. The leader of that
alliance is Belgium. Basically, Serbia was saying the aerial
strikes were violations of the prohibition on the use of force.
Of course, you just bombed their territory.
On the other hand, Belgium is arguing that the use of force is
just (???). It is a circumstance precluding wrongfulness
because of the state of necessity. And what is state of
necessity here? It is the massacre of Kosovar-Albanians
on the ground, or the right of the Kosovar-Albanians to
be free. Their mother state (recall safeguard clause) is no
longer able to protect them; they need the surrogate
protection of the international community.
So, if the state does not succeed in invoking circumstances
precluding wrongfulness, then it means it violated an
obligation. Now, we go to consequences of wrongful conduct.
7.4 Consequences of Wrongful Conduct
Student: They are provided under Article 30 and 31 of the
ARSIWA.
Article 30. Cessation and non-repetition. The
State responsible for the internationally
wrongful act is under an obligation: (a) to cease
that act, if it is continuing; (b) to offer
appropriate assurances and guarantee of non-
repetition, if circumstances so require.
Article 31. Reparation. (1) The responsible
State is under an obligation to make full
reparation for the injury cause by the
internationally wrongful act. (2) Injury includes
damage, whether material or moral, caused by
the internationally wrongful act of a State.
RVP: What is cessation? Reparation?
Student: Cessation is the stopping of the wrongful act.
Reparation pertains to compensation and going back to the
status quo.
RVP: What are the sub-branches of Reparation? They are (1)
Compensation; and (2) Restitution. So, when do you offer
compensation?
Student: (Inaudible but the gist goes like: When there is
damage caused by the wrongful act)
RVP: Actually, the priority of Reparation is Restitution. You
bring back the state of affairs to the status quo, prior to the
violation. If restitution is not possible, then that’s when you
apply compensation because if you cannot make amends, or
bring back things to their original form, then you give the
equivalent thing.
7.4.1. Cessation of Wrongful Conduct
RVP: In The Wall Advisory Opinion, the advice of the ICJ is to
stop constructing the wall (cessation). How about
LaGrand?
Student: In this case, Germany wanted (facts are inaudible).
In the ICJ, it was ruled that after the USA apologized and
promised… ICJ said it was enough…
RVP: The first really is cessation, the stopping of a wrongful
conduct. There are instances, however, that cessation can
no longer be availed of, such as when the wrongful conduct
is irreversible. An example of this is the LaGrand case. Why?
The brother were executed already. There is nothing to stop.
Therefore, you cannot ask for cessation of an act that is
complete. The keyword here is accomplished in an
irreversible manner. The appropriate remedy here is
“assurance of non-repetition”. What the ICJ did here is to
make USA promise not to do it again.
One of the consequences here is that (1) you have a duty to
make reparation, and (2) you have to assure, not only the
injured state, but the rest of the international community that
you would never do the same thing again. Usually, these two
things go together, cessation and assurances of non-
repetition.
Factory at Chorzow Case
Student 1: There’s an agreement between Germany and
Poland wherein (sit down daw kay wala nakabasa huhuhu)
Student 2:
FACTS
Germany owns a factory produces (sounds like nitrate). It
instituted a case against Poland because the factory is
actually situated in Poland. There were two German
companies involved in this case. The first company is the
registered owner of the factory, and the equipment on the
factory. The other company is handling the management and
operations of the company.
Poland was saying that, under the Treaty of Versailles, it
owns the said property because it was transformed from an
ordinary ??? to state ??? (saba carlson bi). So, Poland
instituted a cancellation of the registration of the company,
and issued registration to the same. Germany instituted an
action to recover possession of the property but to no avail,
because during the arbitration stage, they withdrew their
action. Due to the impracticability of recovering possession of
the property, they sought reparation for the damage caused
by Poland.
ISSUE
Whether Germany is entitled to reparation
RULING
Yes. Reparation is actually complementary to a violation of
an obligation. If a State violates an obligation, then it has a
concomitant obligation to make reparations to the injured
party. The court, in this case, said that there is insufficient
data to determine the amount to be paid, thus, there was a
need to seek the aid of an expert to determine the amount of
reparation.
RVP: That’s the thing with ICJ before. If you failed to allege
the amounts for reparation, it won’t issue a decree. In fact,
the reparation would be merely symbolic, e.g. the offending
state would simply be asked to say sorry.
7.4.3 Obligation of Third States
RVP: The third states must (1) recognize the wrongful
conduct; (2) cooperate with the injured state or the ICJ in
implementing the decision. The third state must not tolerate
the wrongful conduct or obstruct the implementation or
execution of judgment of the ICJ.
7.5 Who may invoke the breach of international law?
RVP: Obviously the injured state. Even if you’re not the
injured state, as in the case of Belgium, you may invoke the
breach if the obligation is erga omnes or jus cogens. Do you
remember all the cases here in 7.5.2.?
Barcelona Traction
It is about a corporation located in Spain, incorporated in
Canada, with majority shareholders coming from Belgium.
Belgium v. Senegal
You remember that guy that Senegal doesn’t want to
prosecute, then Belgium sought to extradite him.
The Wall
Obvious kaayo ganiha ra ta gasturya ani. The obligation erga
omnes here is the right to self-determination.
East Timor
Right to self-determination as well.
7.6 The International Responsibility of International
Organizations
RVP: Kamo nalang bahala ani. Al-Jedda v. UK is very
important here. Ay hala naa diay ta’y naskip!
7.2.3 Attribution for acts by organs on loan from another
state
Jaloud v. The Netherlands
Student: This happened in Iraq, but the military forces of the
netherlands were in Iraq because they were loaned. There
was a checkpoint which was attacked by an unknown vehicle.
(oops time out 01:24)
Atty: Daghan sila diba?
Student: Yes but what is involved in this case is only the
military force of Netherlands.
Atty: Okay then?
Student: So what happened was, there was a checkpoint.
Initially, the checkpoint was attacked by an unknown vehicle
and then counterfired. Another car approached then there
were exchanges of shots wherein Jaloud died. So
Atty: Are you sure Jaloud died?
Student: Yes. He was sitting in the passenger’s seat. And
then
Atty: Ask ta ko kinsa nga Jaloud ang naa sa UK, kinsa nga
Jaloud ang naa sa case? (wa ko kahibaw ngano wa niya
tubaga)
Student: It should be noted that as a rule in the ARSIWA,
when there is a loan, the receiving state is actually
responsible for its actions however an exception to that is
when the sending state still maintains control.
Atty: The loan state organ
Student: So um, in here the main issue is whether or not
Netherlands is responsible for the acts of its military forces in
Iraq.
Atty: Before that, ga brainstorming naman gud sila guys,
kinsay responsible sa pagkamatay ni Jaloud daghan sila
didto, British forces, Australian, American and the Dutch
forces. So its zeroed in to the responsibility of the Dutch
forces because sila man ang incharge sa Jadhav idk
(1:26:04)?
Kinsay gina blame ani? Kinsay ga away? Si UK and si
Netherlands right?
Student: Yes, bec the military forces is under the command of
the UK officers.
Atty: Sila may leader, ok?
Student: So, in this case the court ruled that Netherlands is
responsible because even if the military forces were under
the order of the UK officer, um Netherlands still maintains
control over its military forces and in fact, they have set out
rules on when to employ force, in self defense, or when they
are threatened. So the Netherlands still maintains control of
its military forces to the exclusion of the other states.
Atty: What are the evidence they have? Theres a royal
decree, letter right?
Student: Yes the exchange of ________, between the
minutes of the meeting of the staff? Through issuing the
instructions in which Netherlands specified the
circumstances.
Atty: This is a case in Article 6, right? Read the provision
(reads)
Atty: These are the things you have to remember under
Article 6. This contemplates loan state organs and the state
organs that may be subject to the disposal of another state
are the only state organs under Article 4. Dili muapply ang
state organs under Article 5. Ngano man? Kung parastatal?
Enity ra diay, pwede ra mag himo himo ang nag loan or ang
borrowing state. So you can only loan state organs de jure or
the state organs under Article 4.
The responsibility for the acts of borrowed state organs will
be the responsibility of the borrowing state provided that the
loaned state organ is under the exclusive direction and
control of the borrowing state.
If for example, there is a co-mingling of control and direction,
between the borrowing state and the lending state, no matter
how residual or small the direction and control of the lending
state, responsibility will still pertain to the lending state.
Again, the loaned state government? ,must be under the
exclusive direction and control of the borrowing state. That’s
why its placed at the disposal of the other state meaning the
other state can just do anything to that state organ without
the lending state raising up arms and complaining.
*calls another student
Atty: Velasquez (but student picks al bashir)
Student: The UN security council issued? a resolution
regarding the situation in the Republic of Sudan? (HINAY
TINGOG) In which the prosecutor court, issued a
corporation? to the republic of sudan in relation to the
cooperation to provide necessary assistance to the court.
Atty: Assistance to what?
Student: For the act of the President? In which the chamber
issued arrest warrant to the president of Sudan, AL bashir
which happened in 2010, 2005, and 2017. While in 2017,
there was a summit arab _____ summit in which the
presidents attended there where happened in Jordan.
However, Jordan failure to arrest the president in the summit.
Atty: Why did Jordan refused to arrest AL Bashir?
Student: Because of the immunity of the state, the issue here
is whether or not the head of state is immune from the
exercise of jurisdiction of another state. According to the
international court, it was found out that the head of state is
not immune from the jurisdiction of an international court
because there was no statements from the customary
international law that there is immunity of the head of states,
another thing is that the Jordan is required to cooperate with
the Article 87
Atty: (wa ko kasabot, pero murag ganahan cyag velasquez?
1:33:42) Um that’s fine, for now.
Atty: DO you agree that al bashir does not enjoy immunity?
According to the Chorzow? chamber right?
Student: Yes,
Atty: What are the crimes alleged to al bashir?
Student: Crimes alleged are genocide, massacre, rape
Atty: In Darfour?
Students: So with regards to the head of state immunity, al
bashir cannot invoke the immunity when it comes to the
jurisdiction of the international criminal court pursuant Art 27
paragraph 2. Which purpose is to ensure that immunities do
not get in way of the jurisdiction. So it was found that even
though the court may request state parties to arrest and
surrender the head of state of another state and it would
require said immunity to be waived. The court said that there
is no need of waiving immunity because there is no immunity
to be waived. Therefore al bashir is still subject to jurisdiction
Atty: Ok, remember guys there is still an ongoing appeal. This
is not yet final. Jordan is appealing the decision of the trial
chambers saying that al bashir does not enjoy head of state
immunity. What happened in this case, he committed
genocide therefore, he will ______ be prosecuted in the
International criminal court. Nag issue of warrant of arrest
because theres probable cause directed against the
international community because jus cogens violation man so
universal jurisdiction. Jordan refused to arrest him, Jordan
rather, refused to implement and execute the warrant.
Jordan’s argument being: if I execute the warrant, if I arrest
him, I will be violating head of state immunity, which is
customary international law. The ICC prosecutor said wala
man na shay immunity with respect to the ICC.
Ingon si Jordan ikaw nalang untay ni arrest, walay immunity
of a state official before the ICC because its not state versus
another state man diba, but al bashir enjoys state immunity
with respect to Jordan, dili man ko ICC, gisugo raman ko
nimo, mao na ang argument ni Jordan. There is immunity
vertically ICC and state but there is no immunity horizontally
state against another state. So it’s a toss up between sudan
and Jordan and Jordan said we are equal sovereign states, I
am not supposed to exercise jurisdiction over their head of
state. Sakto dili?
But ang argument sa prosecutor is, if kamo tanan states mu
argue ana, kinsa naman lay mudakop aning heads of state?
Na sa inyoha raman nang states mag libot libot. Remember
guys that the ICC does not have people. Wala silay sheriff
nga pwede mu issue ug summons or pwede mu arrest.
Walay state police ang ICC. The ICC is saying, we can only
be effective if the states cooperate. If you keep saying nay
immunity, I abolish nlang mi ninyo, wa man mi silbi, kay
alangan naman lang kung ang prosecutor mismo ang mag
sunod sunod ni al bashir bisan asa sha padung to arrest
diba? So if states continue to invoke head of state immunity
under customary international law, then we will be rendered
_____ (useless?) our jurisdiction would be rendered
meaningless. Because we can only act when the person is
surrendered to us and a person can only be surrendered
when we shut up your mouths and say walay immunity to our
very compelling valid arguments. So, Jessup topic? Right?
Topic ni this year kay wala paman haha.
Obvious man kaayo nga nay immunity diri diba? But ang
immunity diring dapita dili obvious. But sakto gyud baya sad
si ICC. If you will not arrest these persons, who will arrest
them? U cannot expect prosecutor to tailgate.
And lastly for 5mins Velasquez

Atty: Why is this about ultra vires?

Student: Because Manchedo Velasquez, the one who was

arrested and detained without a warrant, was allegedly
abducted by the members of the national office the
investigation office of Honduras so therefore these members
of these organizations allegedly acted in excess of their
authority.

Atty: Why?

Stuent: Because it is found out here that the arrest was

without a warrant, and there were allegations that velasquez
was subjected to torture, and velasquez was presumed to be
dead because he disappeared for 7 years.

Atty: What are (or were there) ______ for Habeas corpus?
Acted by the Honduras courts, that is why na exhaust na ang
domestic remedies, remember that, okay? But why is this
about ultra vires? Whats the lis mota of the case?
The authorities that abducted him were in civilian attires,
meaning the Honduran government is arguing that they were
not acting in their official capacities in fact they are as
civilians. Honduras was arguing that’s not our fault, because
they were acting in excess of the authority granted to them.
This is a landmark case. Bahalag ultra vires, responsible
gihapon ang state, ultra vires man nang gibuhat sa police
authorities, torture can never be in official capacity and then
wala sila uniform, and wala nila na produce ang body ni
velasquez despite several petitions for habeas corpus filed.